According to a former federal judge, Abbott utilized “scorched earth” strategies to disprove allegations that their infant formula led to brain damage or child fatalities.
Ex-attorney Mark Bennett said that the firm’s strong attorneys pounded their adversaries with paperwork for years while they decimated them in court.
The native of Iowa, who oversaw many cases involving families and the business, said they made covert court agreements with accused victims.
He further said that the attorneys were attempting to place the responsibility for the fatal bacterium in the homes of the afflicted children’s parents.
In his 20 years on the bench, Bennett stated their behavior was “the worst by a factor of 10” he had ever seen.
The startling allegations are being made as Abbott increases up infant formula manufacturing at its Michigan facility after it was shut down due to dangerous infections found in its products.
Desperate parents were compelled to empty grocery shelves of their remaining supply, which caused a national tragedy.
In May, Joe Biden eventually organized several urgent flights to bring it in from overseas, but the supply remained critically low.
Slade Sisk had suffered debilitating brain damage after consuming Abbott’s Similac powdered formula the year before
His mother argued he was infected with Cronobacter sakazakii after consuming powdered formula, but lawyers for Abbott argued it may have come from her house
Abbott was also forced to close its plant in Sturgis, Michigan, where the bacteria was found
The recall created an ensuing shortage of baby formula throughout the country
The Biden administration flew in millions of bottles of baby formula from overseas to address the shortage
Bennett on Tuesday released his scathing series of claims against Abbott for their lawyers’ tactics during court cases against families in recent years.
He told the New York Times they tried to persuade juries the parents were to blame for their children being infected with the bacteria Cronobacter sakazakii.
The families’ local lawyers would not be able to fight back against Abbott’s expensive attorneys from the international firm Jones Day, Bennett said.
Then after they would win the lengthy and costly legal battles, Abbott’s lawyers would either seal the court records, or have the parents and their attorneys sign a non-disclosure agreement as part of a settlement.
Mark Bennett, a former federal judge in Iowa, who has presided over several cases in which struggling families tried to take on the formula behemoth, has revealed how Abbott Laboratories’ powerful lawyers buried their local opponents in paperwork and forced parents to remain silent as they crushed them in court
But earlier this year, the company voluntarily recalled its powdered formula after young children died from the bacteria — which was later found in its now shuttered Sturgis, Michigan plant.
The recall forced families throughout the United States to try to find alternatives to feed their infants as Abbott’s products accounted for nearly half of all formula sales.
Lawmakers soon convened hearings on the issue, and the Biden administration airlifted millions of bottles of formula from overseas to help struggling parents.
The New York Times report details two families’ struggle to get compensation from Abbott Laboratories after their infants digested its powdered formula and suffered from brain damage.
In one case dating back to 2005, Nick Stein, a lawyer with a small practice in Indiana, received an email from Kimberly Sisk in rural North Carolina.
In it, she said her son, Slade, had suffered debilitating brain damage after consuming Abbott’s Similac powdered formula the year before. Sisk did not have much money for her son’s treatment — she lived in a mobile home and worked as a house cleaner.
Stein then filed a lawsuit against the company in North Carolina state court in February 2007, listing his colleague, Stephen Meyer, as a co-counsel.
Soon, the Times reports, lawyers from Jones Day filed a motion seeking to remove the two attorneys from the case, saying Meyer had been in touch with an expert witness that Abbott had used in a different case, and the expert had an ongoing relationship with the company.
A trial judge concluded that Meyer’s contact with the expert ‘constitutes the appearance of impropriety’ and granted Abbott’s motion.
The family of Jeanine Kunkel (pictured) sought to fight Abbott Laboratories in court after she was diagnosed with meningitis after being fed Abbott’s powdered formula at just 12 days old
Her family says her brother did not consume the formula and was not infected
Sisk was then left without an attorney three years after her lawsuit was filed, the Times reports, and went on to hire Stephen Rathke, a former local prosecutor in Minnesota, who refiled the suit in state court.
Abbott then removed the case to federal court, restarting the legal process.
Its lawyers then claimed that the powdered formula Sisk had in her possession when Slade got sick tested negative for the bacteria (even though studies have shown that the bacteria can clump up, so one sample may test negative while another sample from the same container could test positive.)
At the same time, a test from Sisk’s kitchen sink turned up traces of the bacteria, leading the Jones Day lawyers to argue that the Cronobacter that infected Slade as an infant came not from the formula, but from Sisk’s home.
Sisk — who describes herself as a neat freak and said she always sanitized her son’s bottles and used store-bought distilled water to mix with the powdered formula — argued that the bacteria was in her sink because she dumped the remainder of Slade’s formula down the drain.
The families’ local lawyers would not be able to fight back against Abbott’s expensive attorneys, from the international firm, Jones Day, Bennett said
By late 2013, the Times reports, Abbott offered to settle the case for $900,000, but Sisk and her attorney thought the amount was inadequate — by their calculations, she was owed about $3 million.
Plus, Sisk said, ‘they told me if I settled, I had to keep everything hush-hush,’ something she said she was unwilling to do.
The case ultimately went to trial, where a jury ruled after just one week of testimony that Abbott was not liable.
Immediately after, Jones Day sought and won a court order sealing some trial testimony on the grounds that they contained information about Abbott’s testing and food safety protocols as well as its ‘sanitation, housekeeping and hygiene.’
Rathke was also tapped to represent the family of Janine Kunkel, who had been diagnosed with meningitis after being fed Abbott’s powdered formula at just 12 days old. Her twin brother did not drink the formula, her family claims, and did not become ill.
Rathke sued Abbott on behalf of the family in 2011 for $16 million in compensatory damages.
He and his expert witness argued that the only way Jeanine could have gotten sick was the bacteria in the powdered formula. They said it was the only thing she had consumed and is known to be a common carrier for the bacteria.
But Jones Day lawyers argued she could have gotten the bacteria from anywhere.
And when Rathke questioned Abbott employees during the trial, Bennett recalled, Jones Day attorney June Ghezzi kept interrupting with objections that seemed to steer the witnesses’ testimony.
Doing so is a violation of the federal rules of civil procedure, which require objections to be ‘stated concisely in a nonargumentative and nonsuggestive manner’ and warn that ‘an excessive number of unnecessary objections may itself constitute sanctionable conduct.’
Still, Bennet said, when Rathke questioned two Abbott employees in August 2012, Ghezzi lodged objections 115 times — or an average of once every three or four minutes over the course of nearly seven hours.
At one point, Bennett recounted, Rathke asked a witness whether she thought there was any correlation between what was found in samples and the finished products that were being shipped to customers.
Stephen Rathke, a former local prosecutor in Minnesota, faced Jones Day attorney June Ghezzi in court, with Ghezzi lobbing more than 100 objections as he questioned witnesses
Ghezzi objected saying it was ‘vague and ambiguous,’ prompting the witness to answer ‘that would be speculation.’
Then after Rathke rephrased the question, Ghezzi objected again, saying ‘It’s a hypothetical; it lacks facts,’ to which the witness responded ‘Yeah those are hypotheticals.’
Ultimately, a jury decided Abbott was not liable for Jeanine’s diagnosis.
Kevyn Orr, the partner in charge of Jones Day’s US offices told the Times that the firm’s only goal ‘was to prove the truth that Abbott’s infant formula’ was not contaminated when it was open.’
Company spokesman Scott Stoffel also said in a statement: ‘Healthy infants and children are at the heart of what we do, and ensuring the quality and safety of our products is a top priority.
‘Our products undergo rigorous quality checks to ensure that they meet both the nutritional and safety needs of infants and children.’
Stoffel added in a follow-up email in January that the company was ‘very sympathetic to the families in these situations,’ but juries have concluded Abbott was not to blame.
That email, however, came weeks before the company recalled its powdered baby formulas and shut down its Sturgis, Michigan plant.
DailyMail.com has now reached out to Abbott Laboratories and Jones Day for comment.
Several academic studies have found that powdered formula could be a breeding ground for Cronobacter sakazakii, though it can be difficult to prove where a child got the bacteria from.
But in February, Abbott Laboratories was forced to recall its baby formulas after several infants who were exposed to the powdered formulas died.
Abbott Laboratories was forced to recall its powdered baby formula earlier this year after children died from Cronobacter sakazakii, which can cause meningitis
The recall forced families throughout the United States to try to find alternatives to feed their infants as Abbott’s products accounted for nearly half of all formula sales
The FDA had said at the time that it had received complaints dating back to September 16 of Cronobacter sakazakii infections, and are investigating the consumer complaints.
The CDC also said it was first notified of bacterial infections related to Abbott Nutrition baby formulas on February 10.
Since September 16, it reports, four infants in Minnesota, Ohio and Texas have contracted a Cronobacter sakazakii infection after consuming baby formula including Similac Sensitive, Similac Pro-total Comfort, Similac Advance and Similac PM 60/40.
All five children were hospitalized as a result, and by March, two infants in Ohio died.
The company announced in March it has not found any Cronobacter sakazakii in any samples of the formula it sends out, and conducts tests on a regular basis.
But it did say it found evidence of the bacteria in a ‘non-product contact area’ at its Sturgis, Michigan plant, which was later shut down.
Soon, desperate parents across the US struggled to get their hands on baby formula amid a nationwide shortage.
Major national retailers started rationing how much formula each family could buy, and online, people were charging up to $800 for the precious tins.
By the week ending April 24, CBS News reports, 40 to 50 percent of the top-selling baby formula products were out of stock at stores across the country, according to an analysis from Datasembly, which tracked baby formula stock at more than 11,000 retailers.
National out-of-stock levels jumped nine percentage points from 31 percent to 40 percent between April 3 and April 24, according to an analysis from Datasembly.
By July, the shortage reached a new low with 28.5 percent of products now completely out of stock.
President Biden’s solution has been to fly in foreign formula to try to plug the gap, but the 802,446 bottles that arrive per shipment barely line the stomachs of the 3 million babies born every year.